State ex rel. Pickrel v. Industrial Commission

539 N.E.2d 623, 43 Ohio St. 3d 128, 1989 Ohio LEXIS 102

• Court: Ohio Supreme Court
• Decided: June 7, 1989
• Docket: No. 88-671
• Status: Published

Opinions

Moyer, C.J.

Appellant claims an automatic entitlement to an award equal to the statewide average weekly wage at the time of her husband’s death. We disagree with appellant’s interpretation of R.C. 4123.59(B) and hereby affirm the judgment of the court of appeals.

R.C. 4123.59(B) establishes that weekly death benefits to wholly dependent persons “shall be sixty-six and two-thirds per cent of the average weekly wage * * *,” subject to a statutory maximum and minimum.¹ By focusing exclusively on the statutory maximum, appellant ignores what we perceive to be the mandatory formula for the computation of weekly death benefits.

As a predicate to relief in mandamus, it must be shown that; (1) relator has a clear legal right to the relief requested, (2) respondent is under a clear legal duty to perform the act sought, and (3) relator has no plain and adequate remedy at law. State, ex rel. Westchester Estates, Inc., v. Bacon (1980), 61 Ohio St. 2d 42, 15 O.O. 3d 53, 399 N.E. 2d 81, paragraph one of the syllabus. In the present case, we find that the commission properly applied R.C. 4123.59(B) in determining the amount of death benefits due appellant. Appellant thus has failed to establish a clear legal right to the relief requested.

Accordingly, the judgment of the court of appeals denying a writ of mandamus is affirmed.

Judgment affirmed.

Holmes, Wright and H. Brown, JJ., concur. Sweeney, Douglas and Res-nick, JJ., dissent.

1 R.C. 4123.59(B) reads in Ml:

“If there are wholly dependent persons at the time of the death, the weekly payment shall be sixty-six and two-thirds per cent of the average weekly wage, but not to exceed a maximum aggregate amount of weekly compensation which is equal to sixty-six and two-thirds per cent of the statewide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code, and not in any event less than a minimum amount of weekly compensation which is equal to fifty per cent of the statewide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code, regardless of the average weekly wage; provided however, that if the death is due to injury received or occupational disease first diagnosed after January 1,1976, the weekly payment shall be sixty-six and two-thirds per cent of the average weekly wage but not to exceed a maximum aggregate amount of weekly compensation which is equal to the statewide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code; provided that when any claimant is receiving total disability compensation at the time of death the wholly dependent person shall be eligible for the maximum compensation provided for in this section. Where there is more than one person who is wholly dependent at the time of the death of the employee, the industrial commission shall promptly apportion the weekly amount of compensation payable under this section among the dependent persons as provided in division (D) of this section.”